U.S. Fire Ins. Co. v. Warden, 4477

• Decision Date: 17 September 1971
• Docket Number: No. 4477,4477
• Citation: 471 S.W.2d 425
• Parties: UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Mrs. Clarence WARDEN, a Widow, et al.
• Court: Texas Court of Appeals

Page 425

471 S.W.2d 425

UNITED STATES FIRE INSURANCE COMPANY, Appellant, v. Mrs. Clarence WARDEN, a Widow, et al.

No. 4477.

Court of Civil Appeals of Texas,

Eastland.

Sept. 17, 1971.

Rehearing Denied Oct. 8, 1971.

McMahon, Smart, Sprain, Wilson & Camp, John P. Camp, Abilene, for appellant.

Scarborough, Black, Tarpley & Scarborough, J. R. Black, Jr., Abilene, Hammond & Hammond, Burnet, Rassman, Gunter & Boldrick, James P. Boldrick, Midland, for appellees.

COLLINGS, Justice.

This is a workmen's compensation case. The appeal is from a judgment based upon a jury verdict finding in special issue number one that Clarence Warden, deceased, was not a borrowed employee of Wheaton Van Lines, Inc. The right of appellee, Warden's widow and children, to receive death benefits under the Workmen's Compensation Act is not disputed. The controversy is between two insurance companies as to which is liable for such death benefits. Liberty Mutual Insurance Company, hereinafter referred to as Liberty Mutual carried the workmen's compensation coverage for Wheaton Van Lines, Inc., hereinafter referred to as Wheaton, an interstate carrier of furniture. United States Fire Insurance Company, hereinafter referred to as United States Fire, carried the workmen's compensation insurance for Evan Anderson d/b/a Security Van and Storage Company, hereinafter referred to as Security, the local agent for Wheaton in Abilene, Texas. Anderson was an intrastate carrier of furniture in Texas. The issue in the case is whether at the time of his death in Arizona, while he was hauling furniture from the state of Washington to points in Texas and Alabama, Clarence Warden was a borrowed employee of Wheaton or was at such time only a general employee of Security. The Industrial Accident Board found that Warden was employed by both Security and Wheaton at the time of his death and ordered death benefits to be paid jointly and severally by Liberty Mutual and United States Fire. As heretofore noted the jury found that Warden was not a borrowed employee of Wheaton, and based upon such finding, judgment was rendered in favor of Liberty Mutual. United States Fire has perfected its appeal. The record shows that Evan Anderson is the sole owner of Security Van and Storage Company of Abilene, Texas. On March 20, 1968, Anderson as owner of Security entered into an agency agreement with Wheaton Van Lines, Inc., a common carrier by motor vehicle of household goods in interstate commerce. Security could not operate outside the state of Texas because the only permit which it held for carrying household goods was issued by the Railroad Commission of the state of Texas authorizing it to carry goods from Abilene, Texas to and from other points in Texas. During September of 1968 Anderson hired Warden as a truck driver, and on November 15, 1968 Anderson as owner of Security leased a truck tractor and van type trailer to Wheaton by two written lease agreements, the terms and conditions of which leases are identical and will hereinafter be referred to as a single lease.

All of the parties hereto have stipulated that at the time of his death Warden was operating the truck and loaded van pursuant to the lease agreement between Anderson as lessor and Wheaton as lessee. Anderson testified that at any time the truck was operated outside the state of Texas it was operated under the lease agreement with Wheaton. The lease provided in part as follows:

'1. The Lessor does hereby lease to the Lessee, for the term hereinafter set forth, the vehicles herein described, said vehicles to be used during the term of this lease solely and exclusively for transporting household goods as hereinabove defined, and under the direction and control of Lessee.

2. The Lessor agrees that (it) will at (its) (his) own cost and expense provide such drivers and assistants as may be required to operate said leased motor vehicles and that (it) (he) will pay all wages of said employees and all taxes now and hereafter imposed upon or measured by wages of said employees. Lessor agrees that (it) (he) will, at (its) (his) own expense and cost, provide workmen's compensation insurance covering (its) (his) said employees while operating in Lessee's service and shall furnish Lessee with a certificate of such insurance, which certificate shall have 'ALL STATE' or 'Interstate' endorsement attached. Lessee shall have the right to hire and discharge the drivers and assistants so employed.

15. Notwithstanding any provisions contained herein which might be construed otherwies, the Lessee shall have the exclusive possession, control, and use of the said equipment when operated by the Lessee; and during the period the vehicle is operated in its service, Lessee completely assumes full responsibility to the public, the shippers, and to all state and federal regulatory bodies or authorities.'

Appellant presents points contending that the court erred in overruling its motion for a directed verdict, in overruling its motion to disregard the jury's answer to special issue number one and in overruling its motion for judgment non obstante veredicto, because there was no evidence to support the verdict, and that the evidence showed conclusively that at the time of his death Warden was a borrowed employee of Wheaton. Appellant further contends that the court erred in overruling its motion for a new trial because the evidence is insufficient to support the finding of the jury in answer to special issue number one...